Fletcher v. State

• Decision Date: 10 May 1973
• Citation: 291 Ala. 67,277 So.2d 882
• Parties: Alvin FLETCHER v. The STATE of Alabama. SC 318.
• Court: Alabama Supreme Court

Page 882

277 So.2d 882

291 Ala. 67

Alvin FLETCHER v. The STATE of Alabama.

SC 318.

Supreme Court of Alabama.

May 10, 1973.

William D. Jetton, Guntersville, for appellant.

William J. Baxley, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State.

FAULKNER, Justice.

This is a 1971 Alabama version of the Eternal Triangle. Oliver Conley was 'dating' Mrs. Alvin 'Poss' Fletcher. Mr. Fletcher asked a sheriff how much time he would get for murdering Conley. Conley told his father, in response to a warning, that there wasn't any danger because 'all them folks over there liked him.' Fletcher told a relative: 'I've had all I can stand.' Conley stepped out in front of a grocery store. Fletcher shot him through the chest. Conley fell on the floor and died.

Alvin 'Poss' Fletcher was tried by jury, found guilty of second-degree murder, and sentenced to twenty years in the penitentiary. He appealed to the Alabama Court of Criminal Appeals, from whence the cause was transferred to this Court.

Six purported errors are complained of on appeal: (1) denial of a continuance to allow appellant's mother-in-law to testify; (2) undue restriction of the questioning of prospective jurors; (3) a remark by the trial judge: 'If you gentlemen don't hurry and get this jury struck, I'll strike it myself;' (4) a ruling that a photograph of the deceased prior to the homicide was inadmissible; (5) failure by the State to prove that the gunshot was the cause of death; and (6) that the verdict of the jury was contrary to the weight and preponderance of the evidence.

A motion for a continuance in a criminal case is addressed to the sound discretion of the trial court, the exercise of which will not be disturbed unless clearly abused. Peaden v. State, 275 Ala. 72, 152 So.2d 136 (1963); Aaron v. State, 271 Ala. 70, 122 So.2d 360 (1960). The record in the instant case shows that the defendant was granted a continuance on September 27, 1971 because of illness of a prospective witness. On November 29, defendant moved for another continuance, because Agnes Treece, the defendant's mother-in-law, was hospitalized. This motion was denied by the trial judge. A statement of what her testimony would be was later admitted by stipulation. We find no clear abuse of discretion in the overruling of the motion for a continuance.

Appellant complains of alleged undue restriction of his questioning of prospective jurors. He does not argue the point in brief, or specify as to how this restriction took place. In defense questioning of prospective jurors covering 12 pages of transcript, there were only three occasions that a prosecution objection was sustained. Defense counsel was not permitted to take the names of those who had previously served on juries. Further, objections to two questions as to whether the jury understood the insanity defense were sustained.

Our statutes provide for examination of jurors as to 'qualifications, interest, or bias' and 'any matter that might tend to affect their verdict.' Title 30, § 52, Code of Alabama 1940, Recompiled 1958. The scope of examination permitted is within the sound discretion of the trial judge. Dyer v. State, 241 Ala. 679, 4 So.2d 311 (1941); Louisville & N.R. Co. v. Davis, 236 Ala. 191, 181 So. 695 (1938). By the explicit terms of the statute itself, we find no abuse of discretion in curtailing the inquiry concerning prior jury service, or in sustaining objections to the two legal questions asked of the jury.

Appellant complains of a remark by the court, 'If you gentlemen don't hurry and get this jury struck, I'll strike it myself.'

As discussed in the recent case of Allen v. State, 290 Ala. 339, 276 So.2d 583 (1973), the trial judge is not required to be a robot without emotional reaction to happenings in his courtroom. Impatience with excessive delay by counsel is a natural and understandable reaction. We see no prejudicial effect on defendant's rights, especially since the judge's rebuke was directed towards both attorneys, the prosecutor as well as the defense counsel.

Photographs are admissible into evidence if they tend to prove or disprove some disputed or material issue, to illustrate or elucidate some other relevant fact or evidence, to corroborate or disprove some other evidence offered or to be offered. Knight v. State, 273 Ala. 480, 142 So.2d 899 (1962). Their admission is within the sound discretion of the trial judge. We can discover no error in his ruling against allowing into evidence a photograph of Conley, the victim, while alive.

Appellant contends that the cause of death was never proven as a matter of law.

In the words of the late Judge Annie Lola Price, in Gurley v. State, 36 Ala.App. 606, 608, 61...